Europe claims UK botched one third of Data Protection Directive
Act 'doesn't implement European law properly'
The UK's Data Protection Act (DPA) does not implement European law properly, according to the European Commission which is investigating problems in the UK's implementation of 11 of the Data Protection Directive's articles, almost a third of the entire directive.
Using freedom of information legislation, OUT-LAW.COM has learned that 11 articles are the subject of two commission letters to the UK Government, even though the Government has refused to provide these details to Parliament. The Ministry of Justice has rejected the commission's claims and told OUT-LAW.COM that the UK Government believes it has implemented the directive fully.
In June 2005, Labour MP Harry Cohen asked the Government exactly what problems the commission had identified when it said that the DPA was a defective implementation of the directive.
Parliamentary undersecretary Bridget Prentice refused to answer.
"We currently have no plans to disclose the detail of those discussions as the formal Commission investigation process is still taking place," she said. "If the Government were to disclose the information requested, it would prejudice the negotiating process between the UK and the Commission and so prejudice UK interests".
The articles of the directive which the commission claims have not been implemented properly are articles 2, 3, 8, 10, 11, 12, 13, 22, 23, 25 and 28 – just under a third of the directive's 34 articles.
These articles relate to: the definitions used in the Directive (e.g. the meaning of personal data); the scope of the Directive's application to manual files; the conditions when sensitive personal data can be processed; the fair processing notices give to individuals; the rights granted to data subjects; the application of exemptions from these rights; the ability of individuals to seek a remedy when there is a breach; the liability of organisations for breaches of data protection law; the transfer of personal data outside European Union; and the powers of the Information Commissioner.
Data Protection expert Dr Chris Pounder of Pinsent Masons, the law firm behind OUT-LAW.COM, said the extent of the objections reflects official attitude towards data protection policy. "All UK Governments involved in implementing the Directive have had a policy of minimising the Data Protection Directive's effect," he said. "The number of problems raised by the Commission seem to indicate that the UK Government may have misjudged the situation and minimised the effect of too many obligations.
"The fact that the commission has a problem with so many of the articles in the directive is a surprise," he said. "I had expected just a handful of objections linked to the Court of Appeal decision in the Durant case."
That landmark ruling from 2003, in Michael Durant's dispute with the Financial Services Authority, narrowed the scope of what constituted personal data under the Data Protection Act.
Pounder continued: "Instead, there are unexpected issues, for example, in relation to transfers, fair processing notices, exemptions, powers of the Commissioner, penalties and remedies."
The commission's investigations were not prompted by a complaint. They were initiated by the commission itself, though they are thought to have been provoked by the Durant ruling.
A statement issued to OUT-LAW by the Ministry of Justice on Friday said: "The European Commission, as part of its review of the implementation of the 1995 Data Protection Directive by each member state, have raised a number of issues with the UK.
"We are in discussion with the commission about these issues. We believe that the UK has properly implemented the Data Protection Directive via the Data Protection Act 1998 and other relevant provisions of UK law," it said.
The commission sent the UK Government its first letter on the issue in 2004, setting out the problems with the Data Protection Act. Until now, those objections have remained secret. The letter threatened proceedings before the European Court of Justice if negotiations with the UK stalled.
Copyright © 2007, OUT-LAW.com
OUT-LAW.COM is part of international law firm Pinsent Masons.
re: re: @Simon Painter
Jeff, you also miss the point I was trying to make. You seem to assume that the Scottish MPs in the Scottish parliament have more power than the English ones that aren't there. As mentioned, they can raise taxes, not lower them. What does that tell you about the rest of their powers?
As for breaking up the UK, they don't want that. Really. Why would they? In power and planning to take second fiddle to Westminster at some point in the future? (Even as a fallback, it's pretty low)
I'm not exactly a great fan of the situation, (It should be all or nothing, in my opinion, with a slight leaning on the nothing. This appears to fit in with your opinions) but a lot of people seem to get wound up over something something that doesn't appear to do anything that wouldn't have happened if the parliament hadn't been built in the first place. (Bar costing money and getting rid of all the talk of devolution)
The ICO has lost the plot
It doesn't surprise me that the ICO's idea of "personal data" should raise eyebrows at the EU. The ICO is paying scholastic games with the definition of personal data - so much so that their concept is now quite counter-intuitive. For example I bet most folks would be surprised to learn that their email address is almost certainly NOT "personal data" by the ICO's lights.
re: @Simon Painter
Scotsman in Yorkshire, you miss the point that Simon was trying to make. In Westminster, the ruling Scottish Mafia make laws for the English when the very same matters are devolved to the Scottish Parliament, and therefore MPs representing English seats can have no say. Without the Scottish Mafia in the UK Parliament at Westminster, Labour would not have the majority necessary to push through their current legislative program to break up the UK.